Citation Nr: 0613793
Decision Date: 05/11/06 Archive Date: 05/25/06
DOCKET NO. 95-35 994 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Washington,
DC
THE ISSUES
1. Entitlement to an initial rating higher than 10 percent
for left knee degenerative joint disease (DJD).
2. Entitlement to an initial rating higher than 20 percent
for left knee instability.
REPRESENTATION
Appellant represented by: William D. Teveri, Attorney
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Hager, Associate Counsel
INTRODUCTION
The veteran had active service from September 1972 to August
1985.
This matter initially came before the Board of Veterans'
Appeals (Board) from a July 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Newark, New Jersey, which granted service connection for
residuals of a left knee injury and assigned a 10 percent
rating. After the veteran disagreed with this evaluation and
testified at a November 1994 RO hearing, jurisdiction over
this case was transferred to the VARO in Washington, D.C.
In July 1999, the RO increased the rating for left knee
injury residuals to 20 percent, for left knee instability,
and established a separate, 10 percent rating for left knee
DJD. After the veteran, who continued to disagree with these
ratings, testified at an October 2000 central office hearing,
the Board remanded his claims in March 2001 and January 2002
for additional development. In January 2003, the Board
denied the claims, but in November 2003 United States Court
of Appeals for Veterans Claims (the Court) vacated and
remanded the Board's decision pursuant to a November 2003
joint motion, due to an inadequate discussion of the Veterans
Claims Assistance Act of 2000 (VCAA) in the Board's decision.
The Board remanded the claims in July 2004 for additional
development. As discussed below, the requested development
has taken place, and the Board will therefore decide the
claims. Stegall v. West, 11 Vet. App. 268, 271 (1998).
In November 2004 and October 2005, the veteran raised issues
regarding disorders of the feet and his service-connected
sinus disorder; those issues are referred to the RO for
appropriate consideration and development.
The veteran requested a Central Office hearing in a letter
received by the Board in February 2006. Such a hearing was
scheduled for May 2006, and the veteran was informed in a
March 2006 letter of the scheduled hearing date and how to
obtain a postponement, either by request or motion. The
veteran neither appeared for the hearing nor requested a
postponement, and his request for a Central Office hearing is
therefore considered withdrawn. 38 C.F.R. § 20.704(d)
(2005).
FINDINGS OF FACT
1. The preponderance of the evidence reflects that the
veteran has had minimal, noncompensable limitation of flexion
and extension of the left knee joint throughout the appeal
period.
2. The preponderance of the evidence reflects that there has
been no instability of the veteran's left knee throughout the
appeal period.
3. There is no evidence of frequent hospitalization or
additional functional or industrial impairment beyond that
contemplated by the governing rating criteria.
CONCLUSIONS OF LAW
1. The criteria have not been met for an initial evaluation
higher than 10 percent for left knee DJD. 38 U.S.C.A. §§
1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a,
Diagnostic Codes 5260, 5261 (2005).
2. The criteria have not been met for an initial evaluation
higher than 20 percent for left knee instability. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45,
4.59, 4.71a, Diagnostic Code 5257 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA), 38
U.S.C.A. § 5100 et seq. (West 2002), and its implementing
regulations redefine the obligations of VA with respect to
its duties to notify and assist claimants. The VCAA applies
to claims, such as the veteran's July 1991 claims here, that
were filed prior to its effective date but were finally
decided thereafter. VAOPGCPREC 7-2003 (Nov. 19, 2003). In
Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (Court) discussed
both the timing and content of the VCAA's notice
requirements. In VAOPGCPREC 7-2004 (July 16, 2004), VA's
Office of General Counsel (GC) undertook to explain the
holding of Pelegrini. The Board is bound by the precedent
opinions of VA's General Counsel as the chief legal officer
of the Department. See 38 U.S.C.A. § 7104(c) (West 2002).
The Pelegrini Court held that VCAA notice must be provided to
a claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits.
Pelegrini, 18 Vet. App. at 115, 120. See also Mayfield v.
Nicholson, No. 05-7157 (Fed. Cir. Apr. 5, 2006). The Court
in Pelegrini also held that VCAA notice must: (1) inform the
claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in his or her
possession that pertains to the claim. Pelegrini, 18 Vet.
App. at 120-121. See also Mayfield, 19 Vet. App. 103, 110
(2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr.
5, 2006). According to GC, Pelegrini did not require that
VCAA notification contain any specific "magic words," and
allowed for the VCAA notification requirements to be
satisfied by a document such as a statement of the case (SOC)
or supplemental statement of the case (SSOC), as long as the
document meets the four content requirements listed above.
VAOPGCPREC 7-2004, at 3.
In cases such as this one where VCAA notice was not provided
because VA had decided claims before November 9, 2000, the
timing problem may be cured by a Board remand following
enactment of the VCAA for new VCAA notification followed by
readjudication of the claims. Mayfield, 05-7157, slip op. at
9. That is precisely what occurred here. The RO's July 1993
rating decision took place prior to enactment of the VCAA,
and, therefore, prior to any VCAA notification. However,
subsequent to enactment of the VCAA, the Board remanded the
claim in July 2004 and the RO provided VCAA notice in its
September 2004 letter before readjudicating the claims in its
October 2005 SSOC. This letter met the notice requirements.
In it, the RO told the veteran it was working on his claim
for an increased rating for left knee injury residuals and
DJD of the left knee. The letter also indicated that the RO
needed additional information from the veteran regarding
medical treatment for his left knee disorder or treatment
records themselves. In an attachment entitled, "What is the
Status of Your Appeal and How You Can Help," the RO
explained the respective responsibilities of the veteran and
VA in obtaining additional evidence. The RO also wrote on
the first page of the letter: "If there is any other
evidence or information that you think will support your
appeal please let us know. If you have any evidence in your
possession that pertains to your appeal please send it to
us."
In addition, while this appeal was pending, on March 3, 2006,
the Court decided Dingess/Hartman v. Nicholson, Nos. 01-1917
and 02-1506, which held that the VCAA notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service connection claim, i.e., 1) veteran
status; 2) existence of a disability; 3) a connection between
the veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability. The
Court held that upon receipt of an application for a service-
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Dingess/Hartman,
slip op. at 14. Additionally, this notice must include
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded. Id.
Although the veteran was provided with notice of what type of
information and evidence was needed to substantiate his
increased ratings claims, he was not provided information
regarding the effective date that would be assigned if the
increased ratings were granted. Despite this inadequate
notice, the Board finds no prejudice to the appellant in
proceeding with the issuance of a final decision. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the veteran has been prejudiced thereby). Because
the Board will deny both increased ratings claims, any
question as to the appropriate effective date to be assigned
is rendered moot, as there is no effective date to assign.
VA thus substantially complied with the VCAA by issuing a
fully compliant notification before readjudicating the claim.
Mayfield, slip op. at 9. It is therefore not prejudicial for
the Board to proceed to finally decide this appeal.
Moreover, VA obtained all identified treatment records. In
addition, as directed by the Board, the RO afforded the
veteran a new VA examination as to the severity of his left
knee disorders. Further, there is no indication that any
other records exist that should be requested, or that any
pertinent evidence was not received. The Board notes that
the veteran's attorney wrote in an October 2005 letter that
the veteran desired to have copies of the new VA examination
and VA treatment records sent to his attorney for a response
should the RO deny the claims. In response to the RO's
October 2005 SOC, the attorney requested copies of the
evidence considered and 60 days to submit a response.
Although a November 2005 letter from the RO to the attorney
indicates that it enclosed the requested items, there is no
response in the claims folder from the attorney, and a
handwritten note attached to the certification of appeal (VA
Form 8) indicates that no additional evidence had been
submitted as of January 23, 2006. VA thus complied with the
VCAA's duty to assist provisions and their implementing
regulations.
Therefore, under these circumstances, no further development
is required to comply with the VCAA or its implementing
regulations, and the Board will proceed to adjudicate the
veteran's claims.
Ratings for service-connected disabilities are determined by
comparing the symptoms the veteran is presently experiencing
with criteria set forth in VA's Schedule for Rating
Disabilities-which is based as far as practical on average
impairment in earning capacity. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. § 4.1 (2005). Separate diagnostic
codes identify the various disabilities. When a question
arises as to which of two ratings apply under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2005). After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. 38 C.F.R. § 4.3 (2005). Also, when making
determinations as to the appropriate rating to be assigned,
VA must take into account the veteran's entire medical
history and circumstances. See 38 C.F.R. § 4.1 (2005);
Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Where,
as here, a veteran timely appeals a rating initially assigned
when service connection is granted, the Board must consider
entitlement to "staged" ratings to compensate for times since
filing the claims when the disabilities may have been more
severe than at other times during the course of the appeal.
See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The
Board will therefore determine whether the veteran is
entitled to higher ratings for either of his knee disorders
for any portion of the appeal period.
The veteran is currently receiving two separate ratings for
his left knee disorders, 10 percent for arthritis-related
limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code
(DC) 5010, and 20 percent for other impairment of the knee
under DC 5257. Such separate ratings are permissible because
these diagnostic codes address either different disabilities
or different manifestations of the same disability. See
VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997);
VAOPGPREC 9-98 (August 14, 1998).
Although March 1993 VA examination left knee X-rays were
characterized as normal (nl), the examiner diagnosed the
veteran with mild DJD of the left knee, and subsequent X-ray
reports contain a similar diagnosis. As such, this disorder
is ratable under 5010, which in turn refers to DC 5003, for
rating degenerative arthritis. DC 5003 provides for such
arthritis to be rated on the basis of limitation of motion
under the appropriate diagnostic codes for the specific joint
or joints involved. Limitation of motion of the leg is rated
under DCs 5260 and 5261. Under VAOPGCPREC 9-2004 (September
17, 2004), separate ratings for limitation of flexion and
extension, respectively, can be assigned for disability of
the same joint under DCs 5260 and 5261.
The normal range of motion of the knee is from 0 to 140
degrees. 38 C.F.R. § 4.71, Plate II (2005). Under the
provisions of DC 5260 (limitation of flexion of the leg) and
DC 5261 (limitation of extension of the leg), a
noncompensable evaluation is warranted for flexion limited to
60 degrees or extension limited to 5 degrees; a 10 percent
evaluation is warranted for flexion limited to 45 degrees or
extension limited to 10 degrees; and a 20 percent evaluation
is warranted if flexion is limited to 30 degrees or if
extension is limited to 15 degrees. However, at all times
during the appeal period, the flexion of the veteran's left
knee has been beyond 60 degrees and extension has been beyond
or at 5 degrees. At the March 1993 VA examination, extension
was to 0 degrees and flexion was to 150 degrees; at the April
1997 VA examination, active and passive flexion and extension
were to 130 and 0 degrees, respectively; at the June 2001 VA
examination, range of motion was from 0 to 130 degrees; at
the June 2002 VA examination, flexion was to 120 degrees and
extension to 0 degrees; at the July 2005 VA examination,
flexion was to 115 degrees and extension was said to lack 5
degrees actively, with the examiner able to fully straighten
the left knee out passively. Thus, as he does not have
compensable loss of range of motion, the veteran is not
entitled to a rating higher than the 10 percent he is
receiving for his left knee DJD.
Under DC 5003, if limitation of motion is demonstrated, but
not to a compensable degree, then a 10 percent evaluation is
warranted, pursuant to DC 5003, for each major joint or group
of minor joints involved. If there is no limitation of
motion, a single 20 percent evaluation is warranted if two or
more major joints or two or more minor joint groups are
involved and there are occasional exacerbations. If there is
no limitation of motion, and no exacerbations, then a single
10 percent evaluation is warranted, but only if two or more
major joints or two or more minor joint groups are involved.
The knee is a major joint, 38 C.F.R. § 4.45(f) (2005), and
the only joint group involved in this appeal. The above
range of motion figures reflect that there has been some
minimal limitation of motion throughout most of the appeal
period, so a 10 percent evaluation, but not more, is
warranted under DC 5003. Thus, there is no evidence in this
record that would warrant an evaluation greater than 10
percent for left knee DJD under DC 5003 for any portion of
the appeal period.
As to the 20 percent rating for other impairment of the knee
under DC 5257, this rating is warranted for moderate
recurrent subluxation or lateral instability, while a 30
percent rating is warranted for severe recurrent subluxation
or instability. Significantly, at the VA examinations
throughout the appeal period, no VA examiner has ever noted
subluxation or lateral instability of any sort, and many
specifically noted that there were no such symptoms. For
example, the March 1993 VA examiner noted that the left knee
was stable times 4, without joint line tenderness, the
December 1994 VA examiner stated that there were no
abnormalities of the left knee and adduction and abduction
were normal and stable at the left knee joint; the April 1997
VA examiner stated that there was no instability of the left
knee joint; the June 2001 VA examiner stated there was no
instability; the June 2002 VA examiner wrote that there was
no instability demonstrated; and the July 2005 VA examiner
stated that there was no patellofemoral instability of either
knee. Thus, a rating of higher than 20 percent is not
warranted for any portion of the appeal period, as there has
been no lateral instability or subluxation of the left knee
at any time.
Moreover, the veteran is not entitled to a higher rating
under any other potentially applicable diagnostic code, as
there has been no evidence of ankylosis, cartilage
dislocation or removal, impairment of the tibia and fibula,
or genu recurvatum, which could warrant higher ratings under
DCs 5256, 5258, 5259, 5262, and 5263.
In addition, when assessing the severity of a musculoskeletal
disability that, as here, is at least partly rated on the
basis of limitation of motion, VA must also consider the
extent that the veteran may have additional functional
impairment above and beyond the limitation of motion
objectively demonstrated, such as during times when his
symptoms are most prevalent ("flare-ups") due to the extent
of his pain (and painful motion), weakness, premature or
excess fatigability, and incoordination-assuming these
factors are not already contemplated by the governing rating
criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995);
see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2005). However,
through most of the appeal period there have been either no
findings as to these symptoms or findings that they have not
been present. For example, at the June 2002 VA examination
there was no pain, weakness, fatigability, decreased
endurance, or incoordination. Moreover, although there was
some pain on motion at the July 2005 VA examination, this and
similar symptoms described by the veteran in written
statements and at the RO and central office hearings are
contemplated by the rating criteria under which he is
receiving 10 percent for DJD and 20 percent for instability
of the left knee.
The Board also has considered whether the case should be
referred to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R.
§ 3.321(b)(1) (2005). However, the veteran has not required
frequent hospitalization for his left knee disorders, and
there is no indication in the record that the average
industrial impairment from these disabilities would be in
excess of that contemplated by the assigned evaluations or
any indication that application of the schedular criteria is
otherwise rendered impractical. Thus, referral of this case
for extra-schedular consideration is not warranted. See
Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996);
Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown,
8 Vet. App. 218, 227 (1995).
In sum, the preponderance of the evidence reflects that the
veteran is not entitled to ratings higher than 10 and 20
percent for his left knee DJD and instability, respectively,
for any portion of the appeal period under any potentially
applicable diagnostic code or based on any other factors.
The benefit-of-the-doubt doctrine is therefore not for
application, and the claim for initial ratings higher than 10
percent for left knee DJD and higher than 20 percent for left
knee instability must be denied. See 38 U.S.C.A. § 5107(b)
(West 2002); 38 C.F.R. § 3.102 (2005); Alemany v. Brown, 9
Vet. App. 518, 519-20 (1996).
ORDER
The claim for an initial rating higher than 10 percent for
left knee DJD is denied.
The claim for an initial rating higher than 20 percent for
residuals of a left knee injury is denied.
____________________________________________
D.C. Spickler
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs